The question of when a cause of action arises can be difficult where the Claimant has entered into a transaction which gives rise to a contingency of a loss; is it when the transaction was entered or when the contingency arose? In claims for negligence the cause of action only arises when there is an actual loss. In Venulum Property Investments Limited v Space Architects and others [2013] EWHC 3948 (TCC) Edwards-Stuart J. suggested a "simplistic approach" for resolving the difficult question of when such a loss occurs.

Venulum entered into a conditional contract to buy development land on 7 September 2006. The contract became unconditional if planning permission was obtained before 31 December 2006. Planning permission was granted on 1 November 2006. It later transpired that the plans used to obtain planning permission were defective. Proceedings were not issued until 31 October 2012, by which time the vendor had ceased to exist. The claims against the other parties to the development would be out of time if the causes of action against them arose when the contract was made but would be in time if the causes of action accrued when the contract became unconditional.

The Defendants applied for summary judgment and, having reviewed the authorities, the judge said that:

“A simplistic approach to the problem…might be to ask whether at the time of entering into the relevant transaction the occurrence of the contingent liability was a probability or only a possibility”

The judge suggested that where the arising of the contingency is probable the loss and the cause of action arise when the transaction is entered into (e.g. as in Sephton and Axa). Where the contingency is merely possible the loss only arises when the contingency does (e.g. as in Sephton).

The judge considered that as at 7 September 2006 it was probable that the planning permission condition would be satisfied. Against his instincts, however, the judge did not give summary judgment. There was no evidence that the defective plans had diminished the value of the Claimant’s rights and the judge did not accept the Defendants’ submission that it was self-evident that there was a loss.

The Defendants’ disappointment may have been eased by the condition on which the Claimant was allowed to continue its claim: it must pay an amount sufficient to cover the Defendant’s pre-trial costs of£450,000 into court.

Whether or not the judge's "simplistic approach" finds favour in later cases remains to be seen, especially where a possibile contingency approaches a probability.

The claimant, Interface, was a manufacturer/supplier of carpet tiles. Interface’s client, a Swiss ba...

Comments are closed

CPD update

As of 1 January 2017, all barristers who are not on the New Practitioners Programme, will be subject to the new CPD regime. In short, the new regime will require barristers to set themselves CPD objectives to be fulfilled over the course of the year and reflect on whether those objectives have been met.

The new regime has realigned the regulatory focus from one of enforcement to facilitation. There is no set minimum number of hours to be completed and, as of December 2016, the accreditation scheme has been axed. This has opened the door for barristers to think more broadly about the activities they wish to participate in to enhance their skills, knowledge and professionalism. Things such as authorship and editing of published works now count as CPD and any activity which goes above and beyond what is already routine.

This will be a welcome change to many in the profession. The old regime was notoriously inflexible; due to time constraints many barristers were forced into attending talks at the eleventh-hour just to tick a box. Further, the old scheme did not cater for unanticipated career breaks for reasons such as maternity leave or being outside the jurisdiction, instead barristers had to apply for extensions of time and waivers.

Jawaharlal Nehru once said “the policy of being too cautious is the greatest risk of all”. However, the BSB has consistently made it clear that the supposed adage has no transferability to the barristers’ duty of confidentiality- and quite rightly.

Two recent cases are a stark reminder of the importance of upholding the core principle of client confidentiality.

In one recent case a criminal law barrister was fined by the Bar disciplinary tribunal for disposing of case papers in a bin bag outside her house, the papers being found by a local authority.

Whilst the Information Commissioner’s Office (“ICO”) took no enforcement action, the Bar disciplinary tribunal fined her £750. A board spokeswoman said that “inappropriate disposal of client files breaches the core duty barristers have to treat client information confidentially…if you are responsible for looking after personal data, you must keep it secure and that includes disposing of it securely too”.

In another case, the ICO fined a senior barrister after her husband had updated software on their home computer which resulted in client sensitive data being publically available online.

The data, which included 725 unencrypted documents relating to information about vulnerable adults and children, was temporarily uploaded to an internet directory as a back-up during the software upgrade.

The material was drawn to the barrister’s attention after a local government solicitor stumbled across it online.

The ICO said “this barrister, for no good reason, overlooked her responsibility to protect her clients’ confidential and highly sensitive information. It is hard to imagine the distress this could have caused to the people involved – even if the worst never happened, this barrister exposed her clients to unnecessary worry and upset.”

Should self-employed barristers be entitled to the fruits of Shared Parental Leave?

Since April 2015, ‘Shared Parental Leave’ has been a legal entitlement for all eligible carers who are employees with a child due (or with a child about to be placed for adoption).

However, for self-employed there is currently no statutory requirement (or regulatory requirements) requiring chambers to provide shared parental leave options to self-employed barristers. Currently, the only regulatory obligation is to provide the main carer with parental leave.

In the BSB’s latest consultation, it considered whether self-employed barristers should receive such an entitlement.

The benefits of Shared Parental Leave are unequivocal. It would allow female barristers the opportunity to continue to thrive in their profession and help remove unconscious bias, thus improving diversity at the Bar. It would also help remove outmoded conceptions of child rearing and streamline the profession to reflect modern family units and practices. Further, it would improve the well-being and work life balance of those in the profession by providing flexibility to parents on how to share parental responsibility.

Some of the challenges identified by the BSB were the cost implications to chambers with a high number of members who previously would not have been able to take leave or request rent rebate. Further, the fact that this would be a regulatory rather than a legal requirement.

The Treasury has rejected the SRA’s calls for full separation from the Law Society to avoid interference with its Anti Money Laundering supervisory function. The SRA had argued for full separation rather than safeguards to ensure independence between representative and regulatory functions. The Treasury have said the independence of these functions will be covered by guidance from the new Office for Professional Body AML Supervision.